New gTLD WEB, Ruby Glen, LLC v. ICANN, Complaint & TRO Request

"Based on the strength of ICANN’s evidence submitted in opposition to the Application for TRO, and the weakness of Plaintiff’s efforts to enforce vague terms contained in the ICANN bylaws and Applicant Guidebook, the Court concludes that Plaintiff has failed to establish that it is likely to succeed on the merits, raise serious issues, or show that the balance of hardships tips sharply in its favor on its breach of contract, breach of the implied covenant of good faith and fair dealing, and negligence claims. Moreover, because the results of the auction could be unwound, Plaintiff has not met its burden to establish that it will suffer irreparable harm in the absence of the preliminary injunctive relief it seeks. The Court additionally concludes that the public interest does not favor the postponement of the auction. Finally, the Court notes that Plaintiff’s Complaint has not adequately alleged a basis for this Court’s jurisdiction." (source: U.S. District Court Order, Ruby Glen v. ICANN, infra)

ICANN has been sued by yet another new gTLD applicant. This time the suit involves new gTLD .WEB, currently scheduled forlast resort auction on July 27. The lawsuit was filed in United States District Court for the Central District of California, on July 22, 2016, and in addition to the complaint (embedded below), also includes an ex parte application for temporary restraining order (TRO)(embedded below), together with declarations, and exhibits. ICANN has indicated it has not yet been served with the complaint or request for TRO. The complaint has drawn upon the U.S. District Court case involving new gTLD AFRICA, by requesting a declaration of rights regarding the release of ICANN required of all new gTLD applicants:

"33. Plaintiff seeks a declaration of its rights regarding the enforceability of the Purported Release in light of California Civil Code Section 1668, which prohibits the type of broad exculpatory clauses contained in the Purported Release: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property or another, or violation of law, whether willful or negligent, are against the policy of the law.” 34. Plaintiff maintains that, on its face, the Release is “against the policy of the law” because it exempts ICANN from any and all claims arising out of the application process, even those arising from fraudulent or willful conduct."